It's still legal to record police: Filming of public arrests, officers OK

The right to openly record police while officers carry out their duties long has been contested in courtrooms across the country, and most recently was upheld by a federal appeals court in the case of a lawyer arrested in Boston in 2007 while recording an arrest with his cellphone.

In that case, Simon Glikwas arrested after he pulled out his cellphone and began recording several police officers arresting a man on Boston Common.

Among the charges, Glik was accused of violating a state wiretap statute. But the charges were later dismissed, and Glik has since filed a suit against the city of Boston.

The Aug. 26 ruling by the 1st Circuit Court of Appeals upheld the constitutional right to openly record officers, saying that "Glik was exercising clearly established First Amendment rights in filming the officers in a public space, and that his clearly established Fourth Amendment rights were violated by his arrest without probable cause."

When it comes to wiretap law, Texas is a one-party consent state, local law enforcement officials noted.

"In most situations, a citizen may video or audiotape an officer as long as they comply with any directions given to them," said Detective John Clark, spokesman for the Abilene Police Department.

The department's first priority, Clark said, is keeping any scene as safe as possible.

During arrests, Clark said, officers ensure that suspects' hands are empty, so someone being taken into custody likely could not record his or her own arrest.

Officers "must exercise control over all the variables at the time," said Clark, who added that he couldn't recall a time in which a local officer arrested someone for documenting a crime scene.

John Cummins, spokesman for the Taylor County Sheriff's Office, said his agency does not provide direct training on how to handle video recording at scenes.

"If you are a party to the encounter, then you can record the encounter," Cummins said. "Simply put, a citizen has the right to record an encounter with the police they are involved in."

Cummins gave an example of a resident being able to record a field sobriety test, but noted that the resident must obey all other laws while recording.

When it comes to such situations, the American Civil Liberties Union of Texas recommends that people be polite and not physically resist an officer's commands, said Lisa Graybill, legal director for the organization.

"Comply with officers' orders and then report it to police, an attorney or the ACLU," Graybill said. "Officers generally cannot confiscate, or delete, your photos or video under any circumstance."

But the law and practice are something different, she said.

Nationally, the ACLU has responded to a string of complaints claiming illegal arrests or detainments for recording officers, officials said.

During spring 2011, the ACLU handled at least six documented incidents of alleged abuse.